An executive summary for people who aren’t executives…
[Offered by a non-lawyer as opinion. You want legal advice, ask a lawyer etc etc.]
Preliminary note: the fact that this is an internet technology is not really relevant. The whizziness makes people think there are technical issues here, but actually the serious stuff is not affected by the technology. On other words, even if someone printed this out for you because websites scare you and you think email is for lunatics, you can still have an opinion. Now read on.
Google Book Settlement:
Pro:
Access: vast library of rare and out-of-print books made available (initially only in US)
New Readers: books – and hence authors – get new readers.
Preservation: orphan works, which otherwise might actually be lost, are returned to circulation.
Revenue: authors and publishers make money on titles which otherwise might be essentially defunct.
(AG statement.)
Quibbles:
Access: only in US and only through Google. Other projects (1, 2) to achieve the same w/o copyright fight exist and have done for years.
Preservation: digital is not the best way to preserve books. Formats change, digital is vulnerable. Also, no guarantees about quality of archiving or scanning – some have been botched. Also, Google has a history of forgetting about projects which aren’t interesting any more.
Revenue: not much of it, and none from ‘non-display’ uses which may be more significant to Google.
Con:
Process: end run around legislative process; private court settlement goes way beyond original case to make new law not just for US but de facto around the world (French v cross). Frankly less than ideal way to change a complex system.
Monopoly: Google and only Google get use of orphan works (new settlement attempt to deal with this still requires congressional intervention – if congressional approval for reworking copyright easy to get, why not do it in the first place?). Effective monopoly on written culture around world for last hundred years. Not a public service, not orphan works being moved to public domain: this is one company establishing probably uncatchable lead over any competition. Consider possible downside: new management decide to gouge consumer. Imagine biggest reference library in the world, w. unique titles, in hands of your least favourite corporate baron. See the problem?
Monopoly (2): Department of Justice not keen, already making anti-trust noises. Imagine settlement passes, and DoJ breaks up Google, splintering off newly-created library. What then? Public property administered by govt? Or snapped up by other large media entity and farmed for profit?
Precedent: copyright has always been opt-in. In other words, you want my stuff, you come to me and make a deal. Here copyright is set as opt-out. If I don’t register an objection, my work can be used. Precedent which favours large companies who can search over small companies and individuals who cannot be constantly vigilant and may not have legal resources to challenge those who appropriate material. Basic posture: you don’t like what we do? So sue us. Favours business over individual, possible rights-grab goldrush.
Privacy: Google refuses to guarantee privacy of readers. Other companies in similar position have fought court cases against disclosure of private reading habits.
Summary:
Massively powerful corporate entity seeks controlling interest in global library, using clever dodge to avoid legislation. Possible public benefits & disadvantages.
Recommendation:
Reject. Seek not-for-profit, governmentally protected global library project, with consent from authors and/or special legislation for orphan works as necessary. If copyright law reform necessary to achieve goal or more generally, then reform law, rather than finding ways to ignore it. (Alarmed by how long that will take? Google deal mired in legislation, been going on since ‘05, may well continue.) Global library amazing idea, worth doing, really, really only want to have to do it once & get it right. GBS not correct answer.
